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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3663 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 3663
To amend title 18, United States Code, to modify delayed notice
requirements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 15, 2026
Mr. Coons (for himself and Mr. Lee) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to modify delayed notice
requirements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``NDO Fairness Act of 2026''.
SEC. 2. PRECLUSION OF NOTICE.
(a) In General.--Subsection (b) of section 2705 of title 18, United
States Code, is amended to read as follows:
``(b) Preclusion of Notice.--
``(1) Application.--
``(A) In general.--A governmental entity that is
seeking a warrant, order, or subpoena under section
2703, when it is not required to notify the customer or
subscriber, or to the extent that it may delay such
notice pursuant to subsection (a), may apply to a court
for an order, subject to paragraph (6), directing a
provider of electronic communications service or remote
computing service to which a warrant, order, or
subpoena under section 2703 is directed not to notify
any other person of the existence of the warrant,
order, or subpoena.
``(B) Length.--An order granted under subparagraph
(A) shall be in effect--
``(i) for a period of not more than 1 year
if the nature of the offense for which the
governmental entity is seeking the warrant,
order, or subpoena pertains to child
pornography under section 2256, sexual
exploitation of children under section 2251, or
any Federal, State, Tribal, or military offense
that is the substantial equivalent; or
``(ii) for a period of not more than 90
days for all other investigations.
``(C) Other requirements.--
``(i) In general.--An application for an
order under subparagraph (A) shall state, to
the best of the applicant's knowledge, whether
the named customer or subscriber whose
information is sought by the warrant, order, or
subpoena under section 2703--
``(I) is aware of the warrant,
order, subpoena, or underlying
investigation; and
``(II) is suspected of involvement
in the commission of the crime under
investigation.
``(ii) Orders.--An order granted under
subparagraph (A) may not direct, or otherwise
require, a provider of electronic
communications service or remote computing
service to provide notification of the
expiration of the order to the court or
government entity that sought the order.
``(2) Determination.--
``(A) In general.--The court may not grant a
request for an order made under paragraph (1), or an
extension of such order requested by the governmental
entity pursuant to paragraph (3), unless--
``(i) the court issues a written
determination, based on specific and
articulable facts, and including written
findings of fact and conclusions of law, that
it is likely that not granting the request will
result in--
``(I) endangering the life or
physical safety of an individual;
``(II) flight from prosecution;
``(III) destruction of or tampering
with evidence;
``(IV) intimidation of potential
witnesses; or
``(V) otherwise seriously
jeopardizing an investigation or unduly
delaying a trial;
``(ii) the order is narrowly tailored and
there is no less restrictive alternative,
including notification to an individual or
organization within or providing legal
representation to the named customer or
subscriber, that is not likely to result in an
adverse result as described in subclauses (I)
through (V) of clause (i); and
``(iii) the court has reviewed the
individual warrant, order, or subpoena under
section 2703 to which the order issued under
paragraph (1) applies.
``(B) Nature of the offense.--
``(i) In general.--Subject to clause (ii),
the court may consider the nature of the
offense in issuing a determination under
subparagraph (A).
``(ii) Presumption.--If the court
determines there is a reasonable belief the
nature of the offense pertains to child
pornography, as defined in section 2256, or
sexual exploitation of children, as described
in section 2251, or any Federal, State, Tribal,
or military offense that is the substantial
equivalent, the court may presume that 1 or
more of the adverse results described in
subclauses (I) through (V) of subparagraph
(A)(i) are met and may issue an order
consistent with this subsection without a
written decision under subparagraph (A)(i).
``(3) Extension.--A governmental entity may request 1 or
more extensions of an order granted under paragraph (1) of not
more than 90 days for each such extension. The court may only
grant such an extension if the court issues the written
determination required under paragraph (2)(A).
``(4) Notification of changed circumstances.--If the need
for the order issued under paragraph (1) or extended under
paragraph (3) changes materially, the governmental entity that
requested the order or extension shall notify the court within
a reasonable period of time (not to exceed 14 days) of the
changed circumstances, and the court shall reassess the order
and modify or vacate as appropriate.
``(5) Opportunity to be heard.--
``(A) In general.--Upon an application, petition,
or motion by a provider of electronic communications
service or remote computing service or person acting on
behalf of the provider to which an order under
paragraph (1) has been issued, including any extension
of such order under paragraph (3), the court may modify
or vacate the order if--
``(i) the order does not meet requirements
under this subsection; or
``(ii) compliance with the order is
unreasonable or otherwise unlawful.
``(B) Stay of disclosure of named customer or
subscriber communications or records.--A provider's
obligation to disclose the information requested in the
warrant, order, or subpoena to which the order in
paragraph (1) applies is stayed upon the filing of the
application, petition, or motion under this paragraph
pending resolution of the application, petition, or
motion, unless the court with jurisdiction over the
challenge determines based on a showing by the
governmental entity that the stay should be lifted in
whole or in part prior to resolution.
``(C) Finality of order.--The decision of the court
resolving an application, petition, or motion under
this paragraph shall constitute a final, appealable
order.
``(6) Exception.--A provider of electronic communications
service or remote computing service to which an order under
paragraph (1), including any extension of such order under
paragraph (3), applies, or an officer, employee, or agent
thereof, may disclose information otherwise subject to any
applicable nondisclosure requirement to--
``(A) those persons to whom disclosure is necessary
in order to comply with the warrant, order, or
subpoena;
``(B) an attorney in order to obtain legal advice
or assistance regarding the order issued under
paragraph (1), including any extension of such order
under paragraph (3), or the warrant, order, or subpoena
to which the order applies; and
``(C) any person the court determines can be
notified of the warrant, order, or subpoena.
``(7) Scope of nondisclosure.--Any person to whom
disclosure is made under paragraph (6) (other than the
governmental entity) shall be subject to the nondisclosure
requirements applicable to the person to whom the order is
issued. Any recipient authorized under this subsection to
disclose to a person information otherwise subject to a
nondisclosure requirement shall notify the person of the
applicable nondisclosure requirement.
``(8) Supporting documentation.--Upon serving a provider of
electronic communications service or remote computing service
with an order granted under paragraph (1), including any
extension of such order under paragraph (3), the governmental
entity shall include a copy of the warrant, order, or subpoena
to which the nondisclosure order applies.
``(9) Expiration of order precluding notice.--Upon
expiration of an order issued under paragraph (1) or, if an
extension has been granted under paragraph (3), expiration of
the extension, the governmental entity shall deliver to the
named customer or subscriber, by at least 2 methods, which
shall be personal service, registered or first-class mail,
electronic mail, or other means approved by the court as
reasonably calculated to reach the named customer or subscriber
within 5 business days of the expiration of the order--
``(A) a copy of the warrant, order, or subpoena;
and
``(B) notice that informs the named customer or
subscriber--
``(i) of the nature of the law enforcement
inquiry with reasonable specificity;
``(ii) that information maintained for such
customer or subscriber by the provider of
electronic communications service or remote
computing service to which the warrant, order,
or subpoena under section 2703, was directed,
supplied to, or requested by the government
entity;
``(iii) that notification of such customer
or subscriber was precluded by court order;
``(iv) of the identity of the court
authorizing the preclusion of notice;
``(v) of the provision of this chapter
under which the preclusion of notice was
authorized; and
``(vi) that the government will, upon
request by the customer or subscriber made
within 180 days after receiving notification
under this paragraph, provide the named
customer or subscriber with a copy of the
information that was disclosed in response to
the warrant, order, or subpoena, or in the
event that no information was disclosed, a
written certification that no information was
disclosed.
``(10) Copy of information disclosed.--Upon expiration of
the order precluding notice issued under paragraph (1),
including any extension of such order under paragraph (3), and
at the request of the named customer or subscriber made within
180 days of receiving notification under paragraph (9), the
governmental entity shall promptly provide the named customer
or subscriber--
``(A) with a copy of the information that was
disclosed in response to the warrant, order, or
subpoena except--
``(i) illicit records;
``(ii) records or materials pertaining to
child pornography, as defined in section 2256,
or sexual exploitation of children, as
described in section 2251, or any Federal,
State, Tribal, or military offense that is the
substantial equivalent; or
``(iii) other illegal material; or
``(B) in the event that no information was
disclosed, a written certification that no information
was disclosed.
``(11) Redactions.--Any information disclosed pursuant to
paragraph (9) or (10) may be redacted only if a court finds
such redactions necessary to preserve the secrecy or integrity
of an investigation.''.
(b) Additional Provisions Regarding Delayed Notice.--Section 2705
of title 18, United States Code, is amended by adding at the end the
following:
``(c) Annual Report.--
``(1) In general.--On an annual basis, the Attorney General
shall provide to the Committee on the Judiciary of the Senate,
the Committee on the Judiciary of the House of Representatives,
and the Director of the Administrative Office of the United
States Courts, which the Attorney General shall publish on the
website of the Department of Justice, in a manner consistent
with protection of national security, a report setting forth
with respect to the preceding calendar year, for each Federal
judicial district--
``(A) the number of named customers or subscribers
with respect to whom, in that calendar year, a warrant,
subpoena, or court order was issued pursuant to section
2703;
``(B) the aggregate number of applications
requesting delay of notification pursuant to subsection
(a)(1), preclusion of notice pursuant to subsection
(b)(1), and extensions pursuant to subsection (b)(3);
``(C) the aggregate number of orders under this
section either granting, extending, or denying a
request for delay of notification or preclusion of
notice;
``(D) the aggregate number of orders under this
section affecting a member of the news media, including
any conduct related to activities protected under the
First Amendment to the Constitution of the United
States; and
``(E) the aggregate number of arrests, trials, and
convictions, resulting from investigations in which
orders under this section were obtained, including the
offenses for which individuals were arrested, tried, or
convicted.
``(2) Process.--The Attorney General shall include in the
report under this subsection a description of the process and
the information used to determine the numbers for each of
subparagraphs (A) through (E) of paragraph (1).''.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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